- (1.) This petition was filed by petitioner challenging the order of removal passed, on 23rd October, 1986. The writ petition was filed in this court on 3rd December, 1986 and this court directed to list the petition for admission on 3rd January, 1987 and granted time to Standing Counsel appearing for the respondents to obtain instructions meanwhile. By order of the same day the operation of the order dated 23rd October, 1986 was stayed. the interim order reads as under: Issue notice. Mean while the operation of the order dated 23-10-1986 (Annexure 7 to the writ petition) shall remain stayed. The respondents in response to the notice issued by this court, filed a counter affidavit dated 31st December, 1986. A copy of the same was served on the learned counsel for the petitioner on 2nd January, 1987. In para 17 of the counter affidavit it has been stated by the respondents that the petitioner has been removed from, service on a very serious and charges of theft and the ex-parte stay order is causing irreparable loss to the respondents. The petitioner had already been removed from service by the order dated 23-10-86 which he acknowledged on 20th November, 1986. The stay order was passed on 3rd December, 1986. For better appreciation, para 17 of the counter affidavit is reproduced below: That in reply to the contents of para 17 of the petition, it is stated that the petitioner has been removed from service on a very serious and charges of theft and the ex-parte stay order is causing irreparable loss to the respondent. The petitioner had already been removed from service by the order dated 23-10-86 which he acknowledge on 20-11-86. The stay order was passed on 3-12-86 and it is in the interest of justice that the ex-parte stay order may be vacated or clarified. The respondent's also prayed for vacating ex-parte order or for clarification. A rejoinder affidavit was filed by petitioner. However the matter could not be taken up by this Court for a long time. Now the petitioner has moved, this application with a prayer to punish the respondents for not obeying the order passed by this Court. This application has been filed in court on 21st March, 1990. A counter affidavit has been filed on to this application. Learned counsel for the petitioner has also made an oral prayer that in the facts and circumstances of the case, the respondents have committed contempt of willfully disobeying the order passed by this court and they are not entitled to be heard. Learned counsel for the petitioner has further requested that this application for punishing the respondents and for further depriving him of opportunity of hearing may be decided first. I have heard Sri M.S. Negi, learned counsel for the petitioner and Sri Lalji Sinha, learned counsel for the respondents.
(2.) Sri Negi has cited certain authorities in support of his contentions. Firstly, he has placed reliance on a case Dr. Madan Gopal Gupta v. The Agra University and others., 1974 AIR(All) 39. Paragraph 6 of this case is very relevant which is being reproduced below: Under the Contempt of Courts Act, there is no provision for striking off the defence of a party in contempt. There is, however, a well established principle that a party in contempt should not be heard in the same cause until that party has urged the contempt. This rule has been followed by Courts in England as well as in India, but the rule is not an absolute one. The striking out of defence, and denial of hearing to a party is a serious matter which entails serious consequences to a litigant. The Courts have, therefore, applied this rule rarely against a party in contempt. The extreme penalty of striking out of defence or denial of hearing is applied only in those cases in which a party is found in contempt for disobeying the order of the Court as a result of which the course of justice is impeded. The Court may, in its discretion, refuse to allow the party in contempt to take active proceedings in the same suit or a cause until the impediment caused by the contemptuous act is removed. This rule is based on the sound principle that no party to a cause of proceeding should be allowed to flout the orders of the Court or impede the course of justice in order to take advantage of his mis-deeds, this rule was applied for the first time by the ecclesiastical courts. Subsequently this rule was made applicable by other Courts also. A perusal of the aforesaid paragraph 6 shall make it clear that this Court took the view that the extreme penalty of striking out of defence or denial of hearing is applied only in those cases in which a party is found in contempt for disobeying the orders of the Court as a result of which the course of justice is impeded. Therefore now it is to be seen as to whether by the alleged contempt committed by respondents the course of justice has been impeded or not The second authority on which reliance has been placed by the learned counsel for the petitioner as the case Chandraveer Singh v. M.B. Mathur, 1990 AllLJ 31. In this case the principle laid down is that the interim order passed by the Court staying operation of the termination order shall be effective irrespective of the fact that it was passed earlier and was given effect to. In the case of Chandraveer Singh the defence of the respondents was that as the order of termination was passed earlier and it had taken effect and in the interim order passed by this Court, there was no direction to take back in service or to pay his salary, they have not committed any contempt. Now it is to be seen how far this case is applicable in the facts and circumstances of the present case. For committing contempt punishment can be awarded only in case of willful disobedience. It is to be seen from facts and circumstances of the case whether the order passed by this Court has not been complied with deliberately or there was some justifiable reasons or circumstances for not complying the same. In this case, admittedly the order dated 3rd December, 1986 staying the operation of order of removal dated 23rd October, 1986 was passed by this Court ex-parte. There was no material before the court as to whether the impugned order has been given effect or not Learned counsel for the respondents was directed to obtain instructions. The respondents thereafter filed a counter affidavit on 31st December, 1986 that is within a reasonable time. They prayed in the counter affidavit that the order dated 23rd October, 1986 has been served on petitioner on 20th November, 1986 and it became effective on the same day, meaning thereby that the petitioner was not in service from 20th November, 1986. It is prayed that the interim order dated 3rd December, 1986 may be vacated or clarified. This writ petition, could not be listed for a long time thereafter. In my opinion, the respondents could have a legitimate hope that their application for vacating stay order shall be decided on an early date. It is well established that the matter of contempt is between the court and the contemner. The petitioner has only to invite the attention of court to the facts and circumstances in which according to him, contempt has been committed. It is for the Court to consider whether its contempt has been actually committed or not. In my opinion, it shall be highly unjust on the part of the Court not to decide the prayer for vacating the stay order and to punish the respondents for committing the contempt. If without deciding the matter of stay vacation the respondents are held to have committed contempt, it will not be equitable on the part of the Court. It is different matter that the prayer for vacating stay order may not have merit, but a party, against whom an interim order is passed, has a legal right to agitate against the same under Article 226(3) of Constitution. However it will be very relevant circumstance in considering such matter as to whether the respondents have approached the Court within reasonable time. He cannot be allowed to flout the order of Court by not implementing the same inspite of knowledge and to apply for vacating the stay order after long delay. Such an attempt shall not be in good, faith The legal effect or binding nature of the Court's order is not diminished in any way merely because it is ex-parte. But the party, against which order is passed, gets a little respite or breathing time to have his say before the Court, in case the Court is approached at the earliest opportunity.
(3.) There is yet another reason for not accepting the submissions of Sri Negi It is apparent from record of the case that on 3rd December, 1986, though a copy of petition was served on the learned counsel for respondents but he was only given time to obtain instructions. This clearly shows that so for interim order was concerned the learned counsel for respondents was not in a position to state such facts, which were disclosed subsequently by means of counter affidavit. It cannot be thus said that the order dated 3-12-86 was passed after bearing the counsel for respondents. Clause 3 of Article 226 of Constitution of India, gives a mandate to decide the application for vacating interim order within period of two weeks from the date it is received in Court or served on the petitioner. The provisions of Clause '3' of Article 226 have an object of avoiding hardship and injustice to such respondents who knocked the doors of Court within reasonable time and pray for hearing of applications for vacating the interim order. It creates an obligation on the part of Court to hear such applications at the earliest and in case, even for any unavoidable reason, the application for vacating stay order is not decided the stay order shall stand vacated, by operation of law. In my opinion, in the facts and circumstances of the present case, the respondents cannot be said to have committed any contempt. The facts of the case reported in : 1990 ALJ p. 31 (DB) are different. The material aspects of the present case was neither involved nor discussed in that case. The case is thus distinguishable on facts.;